1.
In these notes on amendments, the following abbreviations are
used:

AIRC

Australian
Industrial Relations Commission

FWA

Fair
Work Australia

FWO

Fair
Work Ombudsman

NES

National
Employment Standards

COMMENCEMENT

Item 1 - Clause 2

2.
Item 1 replaces the table in clause 2, setting out when particular
clauses of the Bill may commence by proclamation. It
provides, for example, for clauses 573 to 718 of the Bill to
commence on a single proclamation day. This is intended to allow
the new institutions (FWA and the FWO) and Schedule 1 (transitional
provisions about early commencement) to be established before the
rest of the Bill. However, the substantive functions of the
institutions, and inspectors’ powers, cannot commence before
the Fair Work (Transitional Provisions and Consequential
Amendments) Bill receives the Royal Assent.

APPLICATION OF THIS
ACT

State or Territory anti-discrimination laws

Item 1 - Subclause 27(1)

Item 2 - Subclause 27(1)

3.
Currently, paragraph 27(1)(a) of the Bill preserves the operation
of State or Territory laws dealing with discrimination and equal
employment opportunity in relation to national system employers and
national system employees, but not to the extent that they are, or
are contained in, a State or Territory industrial law (as defined
in subclause 26(2)).

4.
Consistent with the idea of a national workplace relations system,
this limitation prevents States from regulating industrial matters
in discrimination laws. However, it raises issues about the
extent to which discrimination laws may be characterised as State
or Territory industrial laws, given that this definition includes
laws that have the main purpose (or one or more main purposes) of
providing rights and remedies for termination of employment or
conduct that adversely affects an employee in employment.

5.
In order to avoid any uncertainty in this area, these items amend
clause 27 of the Bill to ensure that each of the named State and
Territory anti-discrimination and equal opportunity laws are not
excluded by clause 26 of the Bill.

Non-excluded matters

Item 3 - Paragraph 27(2)(l)

6.
Paragraph 27(2)(l) of the Bill currently preserves the operation of
State or Territory laws dealing with regulation of employer and
employee organisations and their members. Organisation is a
defined term in clause 12.

7.
This item replaces the reference to organisation with association,
which has a broader meaning than organisation and gives State and
Territory laws in this area greater scope to operate.

Interaction of modern awards etc with State and Territory
laws

Item 4 - Subclause 29(2)

8.
This item ensures that modern awards and enterprise agreements
apply subject to all non-excluded State or Territory laws,
including:

· the named State and Territory
discrimination laws set out in item 1; and

· laws dealing with rights and
remedies that are incidental to all the non-excluded State or
Territory laws.

Technical correction

Item 5 -
Paragraph 34(3)(a)

9.
Paragraph 34(3) enables the regulations to extend the application
of the Bill beyond the exclusive economic zone and continental
shelf in relation to certain persons.

10.
This item makes a minor technical correction to paragraph 34(3)(a),
adding the word ‘and’ to make clear that regulations
extending the application of the Bill in this way may be made in
relation to any Australian employer and any Australian-based
employee.

Prescribed extensions beyond the EEZ and continental
shelf

Item 6 - Subclause 34(3A)

11.
Paragraphs 33(1)(d) and 34(1)(b) currently extend the Bill to ships
operated or chartered by Australian employers that use Australia as
a base in the exclusive economic zone, the waters of the
continental shelf and beyond. For this purpose, subclauses
33(2) and 34(2) provide that references in relevant provisions of
the Bill to an employer and an employee are deemed to mean an
Australian employer (as defined in clause 35) and an employee of an
Australian employer.

· The definition of Australian
employer provides the necessary jurisdictional connection to
Australia to underpin the Bill’s extraterritorial application,
consistent with international law.

12.
Subclause 34(3) enables regulations to extend the Bill (or parts of
the Bill) beyond the continental shelf to Australian employers and
Australian-based employees. This item inserts a new provision
which ensures that, similar to subclauses 33(2) and 34(2),
references to employer and employee in the Bill, as extended by
such regulations, are deemed to mean (respectively):

· Australian employer, and
employer of an Australian-based employee; and

· Australian-based employee, and
employee of an Australian employer.

Regulations excluding application of Act

Item 7 - Clause 35A

13.
Clause 32 and subclauses 33(4) and 34(4) of the Bill currently
enable the regulations to modify the application of the Bill in
relation to the territorial sea, Christmas Island and the
Cocos-Keeling Islands, the exclusive economic zone, the
continental shelf and beyond.

14.
This item inserts a new provision to clarify that the regulations
can also exclude the application of the Bill in these areas.

· For example, regulations may be
made to exclude from the Bill’s operation foreign-flagged
ships engaged in innocent passage across the territorial sea
between an overseas port and an Australian port.

NATIONAL EMPLOYMENT STANDARDS, DEALING WITH
DISPUTES

Base rate of pay for pieceworkers

Item 2 - Clause 16

Item 3 - Clause 16

15.
These items relate to the definition of ‘base rate of
pay’ in clause 16 of the Bill.

16.
Item 3 adds a power to allow regulations to be made to prescribe,
or provide for the determination of, a base rate of pay for
pieceworkers for the purposes of the protections provided in clause
206 of the Bill.

· Clause 206 provides that an
employee’s base rate of pay under an enterprise agreement
must not be less that the modern award rate or the national minimum
wage order rate.

17.
Special provision is required for pieceworkers because the general
meaning of base rate of pay in subclause 16(1) excludes
bonuses and incentive-based payments.

18.
This amendment will enable the protection in clause 206 to work as
intended for this category of employees.

19.
Item 2 is consequential upon item 3.

Interaction between NES and modern awards and enterprise
agreements

Item 4 - Subclause 55(4)

20.
This item amends subclause 55(4) of the Bill to make clear
that a modern award or enterprise agreement may include terms that
are ancillary or incidental to, or which supplement, the NES, but
only to the extent that such a term is not detrimental to an
employee in any respect.

21.
The intention of this amendment is to ensure that if a term of an
enterprise agreement or modern award that is ancillary or
incidental to, or supplements, the NES contains an element that is
detrimental when compared to the NES, then only the detrimental
element of the term is of no effect. The remainder of the
term will operate.

23.
These provisions explain the interaction of enterprise agreements
and modern awards with the NES.

24.
The amendments make clear that an enterprise agreement can include
terms that are the same (or substantially the same) as an NES
entitlement. These could be terms which simply replicate the NES or
terms that make ancillary or supplementary provision in relation to
the NES and subsume the NES entitlement. This means that an
employer can make a comprehensive enterprise agreement with the
employer’s employees.

25.
Such terms operate in parallel with the NES entitlement, and do not
confer a double entitlement. The same applies to terms of modern
awards that are ancillary or supplementary to a NES entitlement.
This means that a NES entitlement can be sourced both in the NES
and in an enterprise agreement or modern award and can be enforced
as an entitlement under either. Also, the mechanisms contained in
the agreement are available to resolve any dispute about the
entitlement.

26.
This means, for example, that an enterprise agreement could include
provisions about requests for flexible work arrangements (as
provided for by Division 4 of the NES), and disputes about whether
or not an employer had reasonable business grounds for refusing an
application could be dealt with by FWA (or an alternative dispute
resolution provider) under the dispute procedure in the agreement,
even though dispute resolution about this issue is generally not
available (see clauses 739 and 740 of the Bill).

27.
Items 17 and 19 insert new notes to clauses 739 and 740 to make
this clear (see further below).

28.
The amendments made by this item also make clear that where:

· an enterprise agreement
contains terms that are the same or substantially the same as a NES
entitlement, or terms that are ancillary or incidental to, or which
supplement, a NES entitlement; or

· a modern award contains terms
that are ancillary or incidental to, or which supplement, a NES
entitlement,

the
provisions in the NES that relate to that entitlement (e.g., in
relation to rate of accrual of leave, or what notice must be given
to access an entitlement) apply to the entitlement in the award or
agreement (as a minimum standard) to the extent that the award or
agreement entitlement is the same as the NES guaranteed
entitlement.

29.
As the note to subclause 55(6) makes clear, this means, for
example, that if an enterprise agreement provides 6 weeks’
annual leave, the accrual rules and rules about taking of leave
will operate as a minimum standard in relation to the NES
entitlement (4 weeks’ leave), but not in relation to the
additional leave. This provision is designed to ensure the
integrity of the NES, while allowing flexibility in relation to
‘above-NES’ entitlements. In the case of an
agreement with 6 weeks’ annual leave, it would be possible
for the parties to agree that the additional two weeks would be
provided in a ‘lump sum’ at the end of a year, rather
than accruing progressively under the NES.

Item 6 - Clause 61

30.
The amendment to clause 61 of the Bill made by this item is a
consequence of the amendments made by item 5 described
above. This amendment confirms that the NES is a set of
minimum standards that cannot be displaced, even where an
enterprise agreement includes terms that have the same effect as
the NES (as will be permitted by new subclause 55(5)).

Dealing with disputes

Item 12 - Clause 186

Item 13 - Clause 186

Item 17 - Clause 739

Item 19 - Clause 740

31.
Under subclauses 65(5) and 76(4) of the Bill, an employer may
refuse a request for flexible working arrangements or an extension
to a period of unpaid parental leave on reasonable business
grounds. The Bill does not permit FWA (or another person) to
deal with a dispute to the extent that it is about whether an
employer had reasonable business grounds under the NES
(subclauses 739(2) and 740(2)).

32.
These items insert legislative notes after subclauses 186(6),
739(2) and 740(2), consequential upon the amendments made by item
5, to make clear that FWA, or another person, may deal with a
dispute relating to a term of an enterprise agreement that has the
same or similar effect as subclauses 65(5) or 76(4) (that is,
a term of an enterprise agreement that provides that a request for
flexible working arrangements or to extend unpaid parental leave
may be refused on reasonable business grounds).

Item 14 - Clause 738

33.
Item 14 will allow FWA to deal with a dispute about the NES or a
safety net contractual entitlement where the parties have agreed,
not only though an enterprise agreement or contract of employment
(as is currently provided), but also via any other written
agreement.

Item 15 - Clause 739

34.
Item 15 provides that a determination under the Public Service
Act 1999 may also authorise FWA or an alternative dispute
resolution (ADR) provider to deal with a matter arising under the
determination or in relation to the NES.

35.
Determinations under the Public Service Act 1999 are made by
the Agency Head and a determination therefore cannot authorise FWA
or an ADR provider to arbitrate a dispute. However, parties to a
determination could make a written agreement to authorise an
arbitrated outcome. Similarly, parties that are covered by a
modern award could make a written agreement to confer arbitral
powers on FWA or an ADR provider.

Item 16 - Clause 739

Item 18 - Clause 740

36.
Items 16 and 18 will allow parties (which may include
award/agreement free employees or award employees) to consent to
FWA or an ADR provider dealing with disputes about whether an
employer had reasonable business grounds under subclauses 65(5)
(refusing requests for flexible working arrangements) or 76(4)
(refusing extension of unpaid parental leave) of the Bill. Such
consent could be provided in advance under an enterprise agreement,
a contract of employment or otherwise by written agreement.

LONG SERVICE LEAVE

Item 1 - Clause 12

Item 7 - Clause 113

37.
Item 7 amends the NES entitlement to long service leave. The
amendment set out in this item replaces clause 113 in the
Bill. Subclauses 113(1)-(3) are to the same effect as
existing clause 113.

38.
An employee is entitled to long service leave under clause 113
in accordance with applicable award-derived long service leave
terms (subclause 113(1)).

39.
This clause preserves the effect of long service leave terms in
pre-modernised awards (i.e., awards as they stood immediately
before commencement of the NES).

40.
The legislative note after this subclause explains that the Bill
does not exclude State and Territory laws dealing with long service
leave, except in relation to employees entitled to long service
leave under the NES.

41.
To determine whether there are applicable award-derived long
service leave terms, it is necessary to consider the award that
would have applied to the employee’s current employment if
the employee had been in that employment immediately before
commencement (paragraph 113(3)(a)). (This test applies
to existing employees and employees that start employment after
commencement of the NES.)

42.
When making the assessment under paragraph 113(3)(a), the
effect of the types of agreements, and other instruments, referred
to in subclause 113(2) on the award-derived entitlement is
ignored.

43.
The fact that an employee’s award-derived entitlement does
not apply because of the operation of subclause 113(2) does
not mean that the employee does not have an award-derived NES
entitlement (and such an employee could not, for example, become
covered by an agreement-derived NES entitlement under subclause
113(4)).

44.
The legislative note after subclause 113(2) explains that where an
agreement or instrument referred to in this subclause ceases to
apply, the employee will be entitled to long service leave in
accordance with any applicable award-derived long service leave
terms.

45.
Subclauses 113(4) to (6) are new provisions, and have been
included to establish a process under which agreement-derived long
service leave terms may be preserved as an employee’s long
service leave NES entitlement in certain limited
circumstances.

46.
The effect of clauses 27 and 29 of the Bill, in relation to long
service leave, is that new enterprise agreements must comply with
legislation in any State or Territory in which the agreement
applies. This is a new requirement. Currently, long service
leave can be dealt with in agreements in a way that is inconsistent
with such legislation and the terms in the agreement prevail over
the State/Territory legislation. The standards that have applied in
State/Territory legislation have varied over the years.

47.
Some employers that operate in more than one State or Territory
have developed collective agreement-based long service leave
arrangements, which have been able to operate nationally.

48.
The new provisions inserted by this item are intended to allow
existing collective agreement-based long service leave arrangements
to form an employee’s NES entitlement if:

· the terms are included in a
collective agreement that applies beyond a single State or
Territory;

· there are no award-derived long
service leave terms for the employee (meaning that State or
Territory long service leave legislation would otherwise apply);
and

· FWA has made an order that it
is satisfied that the long service leave arrangements in the
agreement are, considered overall, no less beneficial to employees
than the long service leave entitlements that would otherwise apply
under State or Territory law - this is intended to be a
global (rather than line by line) test.

49.
This mechanism is only available where such a scheme exists in a
collective agreement before commencement of the NES. This
approach reflects the transitional nature of the NES long service
leave arrangements, which will apply pending development of a
national long service leave scheme.

50.
Item 1 makes a consequential amendment to insert a definition of
applicable agreement-derived long service leave terms that directs
readers to subclause 113(5).

Item 7 - New clause 113A

51.
Item 7 also inserts a new clause 113A. Clause 113A
provides for the situation where an employee is covered by a
collective or individual agreement, or other specified instrument
(such as a workplace determination), on commencement of the NES
that expressly excludes the employee’s long service leave
entitlements.

52.
Long service leave entitlements are based on an employee’s
length of service - they do not allow for
‘discounting’ of any periods during which an agreement
or other instrument excludes the entitlement. In effect, this
means that where an agreement or other specified instrument that
excluded long service leave ceases to operate, the terms of the
scheme then begin to apply (e.g., under State or Territory
legislation) and operate to provide a full entitlement to the
employee, despite the purported period of exclusion.

53.
Clause 113A provides a one-off opportunity for an enterprise
agreement made after commencement of the NES (referred to in clause
113A as the ‘replacement agreement’) to recognise in an
ongoing way the effect of the exclusion of long service leave in an
agreement, or other specified instrument, that applied on
commencement (referred to as the ‘first
instrument’). It does this by allowing a replacement
agreement to provide that some or all of the period of service
during which the first agreement applied does not count as service
for the purposes of determining long service leave
entitlements.

54.
In relation to this provision:

· the ability for a replacement
agreement to discount periods of service does not apply where long
service leave entitlements may have been excluded by implication
- the exclusion must be in express terms;

· the period of service that may
be discounted in an enterprise agreement may not exceed the period
during which the first instrument applied (i.e., the effect of
previous agreements cannot be included);

· the replacement agreement must
commence immediately after the first instrument for the exclusion
to have effect.

55.
Where an enterprise agreement includes such a provision, the period
of service is taken not to count, and never to count, for the
purpose of determining long service leave entitlements under either
the NES or under State or Territory law, despite clauses 27 and 29
(which provide for the continued effect of State and Territory long
service leave legislation). However, a period of service that
is taken never to count for calculation of long service leave
entitlements can be reinstated by subsequent agreement. This
agreement need not be by way of an enterprise agreement but could
occur, for example, through a contract of employment.

The following summarises the operation of the long service leave
(LSL) NES and the rules for how LSL is dealt with in enterprise
agreements after commencement of the NES.

The LSL NES also establishes a process under which employees’
agreement-derived LSL entitlements may be preserved as their NES
entitlements. (The intention is to enable parties to preserve
genuine and fair agreement-based national LSL schemes.)

If an employee does not have an award or agreement-derived
entitlement, then applicable State and Territory LSL legislation
applies. (This is the effect of the coverage provisions in
the Bill - see clauses 27 and 29.)

LSL terms in agreements that are in operation at the time the NES
commences are not disturbed by the commencement of the NES and will
continue to apply until the agreement is terminated or
replaced.

Where an enterprise agreement is made after commencement of the
NES:

·
the agreement cannot exclude the LSL NES, but may supplement the
NES subject to the requirement that such terms not cause any
detriment to an employee (see clause 55 of the Bill);

·
for employees without an award or agreement-derived entitlement,
enterprise agreements will operate subject to State/Territory LSL
laws (see clauses 27 and 29 of the Bill).

An enterprise agreement may include terms that
‘discount’ the period of service that is counted for
the purposes of determining long service leave entitlements in
limited circumstances, namely:

·
where the enterprise agreement replaces an agreement (or other
specified instrument) that applied when the NES came into
operation;

·
where the agreement being replaced expressly excluded long
service leave.

Notice of termination

Item 8 - Paragraph 117(2)(b)

56.
This item replaces paragraph 117(2)(b) in the Bill to put
beyond doubt that when an employer elects to pay an employee in
lieu of providing notice of termination, this payment must include
payments made on behalf of the employee, such as superannuation
contributions.

Item 11 - Paragraph 123(3)(a)

57.
This item deletes paragraph 123(3)(a) from the Bill.
Paragraph 123(3)(a) had provided that an employee was not
entitled to notice of termination under the NES where they had not
completed a specified period of continuous service with their
employer at the time of termination, or notice of termination
(whichever was earlier).

58.
The effect of this amendment is that all employees (unless
otherwise excluded) are entitled to minimum notice of termination,
irrespective of how long they have been employed.

Redundancy pay

Item 9 - Clause 121

Item 10 - Clause 121

59.
This item amends clause 121 to insert additional
subclauses.

60.
Subclause 121(2) allows a modern award to specify situations
in which clause 119 (redundancy pay) does not apply to the
termination of an employee’s employment.

61.
Under subclause 121(3), where a modern award includes such a
term, an enterprise agreement may incorporate that award term in
the agreement by reference (paragraph 121(3)(a)) and the
agreement may provide that the incorporated term covers some or all
of the employees who are covered by the award term.

62.
Item 9 amends clause 121 of the Bill as a consequence of the
amendment set out in item 10.

Extended entitlements

Item 20 - Clause 758

Item 21 - Paragraph 771(c)

Item 22 - Clause 784

63.
Clauses 758, 771 and 784 of the Bill set out the objects of
Division 3 in Part 6-3 and Divisions 2 and 3 in Part 6-4.
These objects refer to Australia’s international treaty
obligations.

64.
The amendments made by these items make technical amendments to
clauses 758, 771 and 784 to include additional references to the
international standards that underpin the provisions in these
Divisions.

MODERN AWARDS

Item 1 - Clause 12

Item 2 - New clause 140A

Item 3 - New clause 145A

Item 4 - Clause 154

65.
This is a group of amendments to the modern awards content
provisions.

Industry-specific redundancy schemes

66.
Item 1 amends the definition of industry specific redundancy scheme
in clause 12 of the Bill. This amendment makes clear that the
full range of industry specific redundancy schemes can be included
in modern awards.

Long distance transport employees

67.
Item 2 enables modern awards to include terms relating to the
conditions under which an employer may employ employees to
undertake long distance transport work. This provision
reflects concerns that certain industry specific health and safety
provisions currently in State awards would not be able to be
included in a modern award. For example, this clause is intended to
enable a modern award dealing with long distance transport work to
include terms that:

· require transport operators to
develop and implement a written drug and alcohol policy.

Consultation and representation

68.
The amendment in item 3 requires modern awards to include a term
providing for consultation with, and representation of, employees
in situations where an employer has decided to introduce major
changes that are likely to have a significant effect on the
employees.

State-based differences

69.
Item 4 is designed to make clear that the requirement that terms of
modern awards be expressed to operate in each State and Territory,
does not necessarily mean that the terms will always have effect in
each State or Territory because of circumstances specific to that
State or Territory.

· For example, a modern award
could contain a provision that allowed for the payment of a remote
location allowance or tropical allowance even if such a provision
would not have effect in a particular State or
Territory.

70.
Clause 287 provides that national minimum wages orders to come into
operation on 1 July each year. There is no capacity for
the effect of an order to be delayed.

71.
Item 5 provides FWA with a limited capacity to set different wages
or casual loadings in the national minimum wage order and to delay
the commencement of wage variations. FWA is only able to do
this where there are exceptional circumstances, and only to the
extent that is necessary because of the particular situation to
which the exceptional circumstances relate.

72.
The effect of this provision is that, although generally the
national minimum wage and casual loading included in the minimum
wage order must be set at the same level for all employees and
variations in wage rates commence on 1 July, FWA may provide a
different rate, or for variations to take effect later in the
financial year, where exceptional circumstances justify this.
The scope for any such different treatment is limited, and must not
extend beyond the scope of the exceptional circumstances.

73.
Similar provision is made in relation to classes or subclasses of
employees to whom special national minimum wages apply.
However, this provision does not limit the capacity of FWA to set
different rates for different classes of employees covered by a
special national minimum wage. So, for example, FWA will be
able to:

· set different rates for
different classes of junior employees (e.g., based on age or
experience);

· provide that different pay
rates apply to employees undertaking different classes of training
arrangement; and

· without being required to find
that exceptional circumstances exist.

Publication of submissions

Item 6 - Clause 289

74.
Item 6 amends clause 289 (which requires FWA to publish submissions
made to an annual wage review). These amendments provide FWA
with discretion as to how it publishes submissions received as part
of an annual wage review where submissions contain confidential or
commercially sensitive information. This will enable FWA to
publish submissions in a way that does not disclose confidential or
commercially sensitive information.

EQUAL
REMUNERATION

Item 7 - Clause 306

75.
The amendment in this item clarifies the intended relationship
between equal remuneration orders and modern awards, enterprise
agreements and FWA orders.

76.
An equal remuneration order will prevail over a term of a modern
award, an enterprise agreement or an FWA order, to the extent that
the term of the modern award, enterprise agreement or FWA order is
less beneficial to the employee than the equal remuneration
order.

PAYMENT OF WAGES

Item 8 - Clause 324

Item 9 - Clause 324

77.
These items amend clause 324 of the Bill to provide additional
protections for employees when authorising deductions from their
wages.

78.
The amendments made by these items require an employee
authorisation to specify the amount of the deduction, and require
any variation to the amount of the deduction to be authorised by
the employee in writing.

79.
The amendments also make clear that an authorisation may be
withdrawn in writing by the employee at any time.

Item 10 - Clause 326

Item 11 - Clause 326

80.
These amendments extend the protection provided by clause 326 of
the Bill. Clause 326 provides that certain terms of a modern
award, enterprise agreement or contract of employment that allow an
employer to deduct an amount from an employee’s wages, or
require an employee to make a payment to an employer or another
person, are of no effect.

81.
The amendments ensure that a term of a modern award, enterprise
agreement or contract of employment will be of no effect if either
of the following applies:

· the deduction or payment is for
the benefit of the employer, or a party related to the employer,
and is unreasonable in the circumstances; or

· an employee is under 18 and the
employee’s parent or guardian has not agreed, in writing, to
the deduction.

82.
Even if the employee’s parent or guardian consents to the
deduction, it may still be of no effect if it is an unreasonable
deduction for the benefit of the employer, or a party related to
the employer.

HIGH INCOME
THRESHOLD

Item 12 - Clause 333

Item 13 - Clause 333

83.
Clause 333 of the Bill provides that the high income threshold is
the amount prescribed by, or worked out in the manner prescribed
by, the regulations. It is intended that the high income
threshold will be $100,000 per annum for full time employees,
indexed from 27 August 2007 (the date this policy was
announced) and then annually from 1 July each year.

84.
The amendments made by these items ensure that the amount of the
high income threshold cannot be reduced from one year to
another.

85.
A regulation will have no effect to the extent that it would reduce
the amount of the high income threshold (proposed subclause
333(2)).

86.
If the calculation of the high income threshold in the manner
prescribed in the regulations would result in a reduction in the
amount of the threshold, the high income threshold is taken to be
the same as the amount of the threshold in the previous year.

GUARANTEE OF ANNUAL
EARNINGS

Item 14 - New clause 333A

87.
This item inserts a new provision which ensures that a prospective
employee may be offered and may accept a guarantee of annual
earnings before commencing employment.

88.
An employer or prospective employer must comply with all of the
requirements in relation to a guarantee of annual earnings as if
the prospective employee were an employee. However, an
employer’s obligations under a guarantee will not take effect
until the prospective employee commences employment with the
employer.

OUTWORKERS

Designated outworker terms

Item 1 - Clause 12

Item 5 - New clause 57A

Item 7 - Clause 186

Item 9 - Clause 253

Item 10 - Clause 272

89.
This group of amendments enhances protection for outworkers in the
textile, clothing and footwear (TCF) industry. These amendments
acknowledge the unusual nature of longstanding provisions in the
TCF industry award in relation to outworkers.

90.
The award creates a regulatory framework that applies to employers
and other entities that arrange for work to be carried out by
employee and non-employee outworkers. The obligations include
record keeping in relation to these arrangements and ensuring
claims for payment can be recovered from outworker entities that do
not themselves directly employer or engage outworkers. In
addition, the award extends minimum terms and conditions to
non-employee outworkers.

91.
These provisions are maintained in the modern award (see Schedule D
to the Textile,
Clothing, Footwear and Associated Industries Award
2010 ).

92.
This group of amendments has the effect that designated outworker
terms (most outworker terms relating to TCF outworkers) cannot be
modified in bargaining. The effectiveness of these terms
depends on them applying uniformly to all employers and other
entities covered by the award. If particular employers could
modify or remove them in bargaining, the protections for workers in
the industry would be undermined.

93.
Clause 57 of the Bill provides that an enterprise agreement
displaces a modern award in relation to an employer and employee.
It displaces the modern award for an outworker employee but the
employee must have the protection of non-detrimental outworker
terms in the enterprise agreement (see clause 200).

94.
Item 5 adds clause 57A to the Bill to make an exception to clause
57 in relation to designated outworker terms in a modern award. It
provides that designated outworker terms continue to apply to an
employer even where an enterprise agreement applies to the employer
(and to the employees to whom the enterprise agreement applies and
the organisations covered by the modern award). Coupled with this,
items 7 and 9 amend clauses 186 and 253 of the Bill to provide, in
effect, that an enterprise agreement cannot include designated
outworker terms.

95.
Designated outworker terms are terms that relate to outworkers in
the TCF industry that regulate minimum work conditions of contract
outworkers, that regulate liabilities of employers and outworker
entities in relation to outwork or that impose conditions in
relation to giving out work of a kind often performed by outworkers
(see the definition to be added to clause 12 by item 1). Designated
outworker terms cover the sort of terms that are proposed to be
included in the modern award for the TCF industry relating to
outworkers, with the exception of terms that regulate conditions of
employee outworkers directly in the traditional way in which awards
provide conditions to employees.

96.
The effect of clause 57A and amended clauses 186 and 253 is that
designated outworker terms in a modern award cannot be bargained
away and continue to apply to an employer despite entry into an
enterprise agreement. An employer therefore remains subject to any
obligations under the designated outworker terms in relation to
employee outworkers with whom the employer has made an enterprise
agreement. The employer also remains subject to award obligations
in relation to others of the employer’s employees who are
outworkers and any award obligations imposed on the employer in its
capacity as an outworker entity in relation to contract outworkers
or outworkers employed by another employer.

97.
Item 10 amends clause 272 of the Bill to make complementary
provision in relation to workplace determinations. A workplace
determination cannot include designated outworker terms and there
can therefore be no question of displacement of those terms by a
workplace determination.

Definition of outworker and outworker entity

Item 2 - Clause 12

98.
This item makes a technical amendment to the definition of
outworker entity to clarify the link required with work in a
Territory.

Item 3 - Clause 27

99.
Paragraph 27(2)(d) preserves the operation of State and Territory
laws dealing with matters relating to outworkers. This item
gives the term outworker its ordinary meaning (which is broader
than the definition of outworker in clause 12 of the Bill) to give
State and Territory laws in this area broader scope to operate.

Description of outworker terms

Item 6 - Clause 140

100.
This item amends the definition of outworker terms in clause 140 of
the Bill. The amendment provides greater clarity about the
terms that may be included in a modern award.

101.
An award may include terms relating to the conditions under which
an outworker entity may arrange for work to be performed for the
entity (either directly or indirectly) where the work is of a kind
that is often performed by outworkers.

102.
In order for such a term to apply to an outworker entity, it is not
necessary for the entity to know or intend that work will actually
be undertaken by an outworker; nor is it necessary that work for
the particular entity is likely to be performed by
outworkers. Rather, all that is required is that the work is
of a kind that is normally undertaken by outworkers.

Enterprise agreement outworker terms

Item 8 - Clause 200

103.
Clause 200 of the Bill requires outworker terms to be included in
an enterprise agreement that covers an outworker employee where a
modern award that covers the employee includes outworker terms. The
terms of the enterprise agreement cannot be detrimental to the
employee compared with the outworker terms in the modern award.

104.
This amendment clarifies that the agreement cannot be detrimental
to the employee in any respect, and not just better off overall,
when compared with the award. The amendments in relation to
designated outworker terms (see items 1, 5, 7, 9 and 10 above) mean
that, in any case, certain outworker terms may not be included in
enterprise agreements.

Enforcement

Item 4 - Clause 46

Item 13 - Clause 548

Item 14 - Clause 548

Item 17 - Clause 682

Item 11 - Clause 545

Item 12 - Clause 547

Item 15 - Clause 679

Item 16 - Clause 682

105.
This group of amendments ensure that modern award terms that deal
with outworkers can be enforced in the same ways as terms dealing
with employees by providing that:

· modern award terms that deal
with outworkers can be enforced through small claims
proceedings;

· outworkers can be represented
in proceedings by the FWO; and

· outworker entities can be
ordered by eligible State or Territory courts to pay amounts
(including interest) to, or on behalf of, outworkers if such
amounts were payable under a modern award and were not paid in
breach of a civil remedy provision.

106.
Clause 46 of the Bill deals with when an award applies to an
employee. Modern award terms do not directly
‘apply’ to contract outworkers (as the terms impose
obligations on outworker entities in relation to such
outworkers). However, outworkers have standing to enforce
such terms under Part 4-1. An amendment to the note under
clause 46 makes this clear.

GREENFIELDS
AGREEMENTS

107.
This group of items provides for amendments to the Bill in relation
to greenfields agreements. These items:

· remove the requirement that
employers notify relevant employee organisations of their intention
to make a greenfields agreement;

· remove the provisions that
would enable bargaining representatives be appointed in relation to
greenfields agreements;

· make clear that an employer
does not have to make a greenfields agreement with all relevant
employee organisations;

· clarify the operation of the
better off overall test in respect of greenfields agreements,
ensuring consistency with the application of the test to
non-greenfields agreements;

· insert additional approval
requirements for greenfields agreements to ensure these agreements
are made by organisations that represent the majority of the
relevant employees and are in the public interest.

108.
The remaining amendments proposed by this Schedule are
consequential to these measures.

110.
These items amend subparagraphs 172(2)(b)(ii) and 172(3)(b)(ii) to
clarify that an employer or employers can make a greenfields
agreement where they have employed employees in relation to a
genuine new enterprise, provided those employees will not be
covered by the greenfields agreement.

111.
For example, an employer may employ a manager to assist in the
start-up of the enterprise who would not be covered by an
agreement. This amendment makes clear that a greenfields
agreement can be made in situations such as these.

Item 5 - Clause 175

112.
This item omits clause 175 with the effect that there will no
longer be a requirement for an employer to notify relevant employee
organisations of the employer’s intention to make a
greenfields agreement.

Item 6 -
Clause 177

Item 7 -
Paragraph 178(2)(b)

Item 8 -
Paragraph 178(2)(c)

113.
Item 6 omits clause 177 with the effect that bargaining
representatives are no longer to be appointed in relation to
greenfields agreements. Items 7 and 8 are technical
amendments consequential to the removal of clause 177 by item
6.

Item 9 - Subclause 182(3)

114.
This item amends subclause 182(3) to clarify that an employer is
not required to make a greenfields agreement with all the relevant
employee organisations.

Item 10 - Subclause 182(4)

115.
This item is an amendment consequential to the omission of clause
175 by item 5.

Item 11 - Clause 185

116.
This item inserts a new subclause 185(1A) into the Bill to make
clear that an application for FWA’s approval of a greenfields
agreement must be made by either an employer or a relevant employee
organisation covered by the agreement. This amendment is
consequential on the fact that there will no longer be bargaining
representatives for greenfields agreements.

Item 12 - Clause 187

117.
This item inserts a new subclause 187(5) that contains additional
requirements in relation to greenfields agreements about which FWA
must be satisfied before it approves the agreement. The
requirements are that:

· the relevant employee
organisations that will be covered by the agreement are (taken as a
group) entitled to represent the industrial interests of a majority
of the employees in relation to work to be performed under the
agreement; and

· it is in the public interest to
approve the agreement.

118.
In assessing the public interest, it would be expected that FWA
would take into account the objects of the Act, and the need to
ensure that the interests of employees who are to be employed under
the agreement are appropriately represented.

Item 13 - Clause 193

119.
This item amends subclause (3) of clause 193 to clarify that a
greenfields agreement will pass the better off overall test if FWA
is satisfied that each prospective employee would be better off
overall under the agreement. This amendment ensures that the
same test applies in respect of greenfields agreements as applies
to agreements that are not greenfields agreements.

Item 14 -
Subclause 207(4)

120.
This item amends subclause 207(4) to ensure that a greenfields
agreement can only be varied where one or more persons have been
employed and are covered by the agreement.

Item 15 -
Subclause 219(3)

121.
This item amends subclause 219(3) to ensure that a greenfields
agreement can only be terminated by agreement where one or more
persons have been employed and are covered by the agreement.

AGREEMENTS

Better off overall test

Item 1 - Clause 193

122.
This item inserts subclause 193(7) into the Bill to clarify how the
better off overall test operates. Subclause 193(7) ensures
that in satisfying itself that each employee is better off overall
FWA may consider the circumstances of classes of employees.
Subclause 193(7) establishes an evidentiary presumption that, in
the absence of any evidence to the contrary, the better off overall
test does not require FWA to enquire into each employee’s
individual circumstances.

123.
Subclause 193(7) is intended to recognise that, although the
enterprise agreement must pass the better off overall test in
relation to each employee and prospective employee, FWA may group
employees into classes in order to apply the test. It ensures that
the test provides a guarantee that the agreement does not undercut
the safety net but is also able to be applied by FWA efficiently
and without causing undue delay in the agreement approval
process.

124.
The phrase ‘class of employees’ is intended to refer to
a group of employees covered by the enterprise agreement who share
common characteristics that enable them to be treated as a group
when FWA applies the better off overall test. An example is where
the employees are in the same classification, grade or job level,
with the same working patterns.

Illustrative Example

Wreck Resolve Limited (WRL) is a chain of automotive repairers. WRL
makes an enterprise agreement that covers employees working in its
workshops and head office. WRL seeks approval of the agreement from
FWA. Amongst the employees covered by the agreement are mechanics
of different levels of qualification whose classifications under
the agreement align with three classifications in the relevant
modern award. The agreement covers employees within each of these
classifications in the same way. Accordingly, all of the employees
falling within each classification may be considered as a
‘class of employees’ by FWA when it assesses whether
the agreement passes the better off overall test. In the absence of
any evidence to the contrary, FWA is not therefore required to
enquire into the individual circumstances of each employee within
the class.

Variation of enterprise agreements

Item 2 - Subclause 207(5)

125.
This item omits subclause 207(5). The effect of this
amendment is that an agreement that does not pass the better off
overall test but is approved by FWA under clause 189 of the Bill
will be able to be varied. The agreement as varied will be
required to pass the better off overall test.

Item 3 -
Clause 211

Item 4 -
Clause 211

126.
Item 2 omits paragraph 211(1)(c) and inserts a new clause to ensure
that when considering whether to approve a variation to an
agreement FWA must not do so if there are serious public interest
grounds for not approving the variation. Item 3 is
consequential to the removal of paragraph 211(1)(c).

Item 5 - Clause 211

Item 6 - Clause 211

Item 7 - Clause 211

127.
Item 7 inserts subclause 211(3)(ha) to clarify that when
considering whether to approve an application for variation of an
agreement FWA must consider whether the enterprise agreement as
proposed to be varied, rather than the variation itself, passes the
better off overall test and does not contravene the NES.

128.
These items also include technical amendments to clarify the
modification requirements in clause 211 in light of this
change.

Item 8 - New clause 217A

129.
This item inserts clause 217A into the Bill to provide a mechanism
for FWA to deal with disputes about a proposed variation to an
enterprise agreement. The good faith bargaining requirements
do not apply to bargaining in respect of a variation of an
enterprise agreement. This clause provides a mechanism whereby an
employer or employee organisation covered by the agreement or an
affected employee for the variation can seek assistance from FWA if
the employer and affected employees are unable to resolve a dispute
about the proposed variation. FWA may deal with such a dispute by
mediation or conciliation or by making a recommendation or
expressing an opinion (see clause 595). However, FWA must not
arbitrate the dispute.

Description of employees

Item 9 - New clause 256A

130.
This item inserts clause 256A into the Bill to clarify how
employees, employers and employee organisations are to be described
in instruments referred to in Part 2-4 (Enterprise Agreements). The
amendment clarifies that when a provision of Part 2-4 requires or
permits an instrument to specify the employees covered by an
enterprise agreement or other instrument, the employees may either
be specified by class or by name. This is a technical amendment to
ensure that the provisions do not require employees to be
individually named.

131.
The item also makes clear that where a provision requires an
employer or employee organisation to be specified, the employer or
employee organisation must be specified by name.

BARGAINING

132.
This group of items sets out amendments to the Bill in relation to
the bargaining process. The key amendments:

· specifically provide for the
revocation of the appointment of bargaining
representatives;

· remove the civil penalty
provision in clause 179 of the Bill and instead insert into the
good faith bargaining requirements in clause 228 a requirement that
bargaining representatives recognise and bargain with other
bargaining representatives for an agreement;

· amend the operation of the
‘fairly chosen’ criterion in majority support
determinations and scope orders to require FWA to be satisfied in
all cases that the group of employees is fairly chosen.

133.
The remaining items in this group are consequential to these
changes or deal with technical amendments relating to other aspects
of the bargaining process.

Bargaining representatives

Item 2 - Clause 176

Item 3 - Clause 176

134.
These items amend subclauses 176(1) and (2) respectively to reflect
that an employee organisation cannot be a bargaining representative
for an employee if the employee has notified the employer under new
clause 178A that the organisation is not his or her bargaining
representative.

Item 4 - New clause 178A

135.
This item inserts new clause 178A into the Bill to specifically
provide that an employee or employer can revoke the appointment of
their bargaining representative for an enterprise agreement by
written instrument.

136.
Subclause 178A(2) provides that if an employee organisation is a
bargaining representative for an employee because of the operation
of paragraph 176(1)(b) or subsection 176(2), the employee may
revoke by written instrument that organisation’s status as
the employee’s bargaining representative.

137.
Subclause 178A(3) requires an employee to provide a copy of the
revocation instrument to the employer. If an employer revokes
the appointment of its bargaining representative, the revocation
instrument must be given to the bargaining representative and on
request to a bargaining representative of an employee.

138.
Subclause 178A(4) enables the regulations to prescribe matters
relating to the content or form of the instrument of revocation or
the manner in which the copy of the instrument may be given.

Good faith bargaining

Item 5 - Clause 179

139.
This item omits clause 179. The obligation for an employer
not to refuse to recognise or bargain with another bargaining
representative for a proposed enterprise agreement will instead be
included as a good faith bargaining requirement in subclause
228(1). The key consequence of this is that the obligation
will apply to bargaining representatives generally (see item
7).

Item 7 - Clause 228

140.
This item inserts an additional good faith bargaining requirement
in subclause 228(1), being the requirement that a bargaining
representative must recognise and bargain with other bargaining
representatives for a proposed enterprise agreement.

Item 13 - Clause 539, table item 5

141.
This item removes the reference to clause 179 from the table of
civil remedy provisions that is set out in clause 539. This
amendment is consequential to item 5 which omits clause
179.

Fairly chosen

Item 6 - Subclause 186(3)

142.
This item omits subclause 186(3) of the Bill and substitutes two
further subclauses that require FWA to be satisfied that before
approving an enterprise agreement, first, the group of employees
covered by the agreement was fairly chosen and second, that if the
agreement does not cover all of the employer’s employees, FWA
must, in deciding whether the group of employees was fairly chosen,
take into account whether the group of employees is geographically,
operationally or organisationally distinct.

Item 9 - Clause 237

Item 10 - Clause 237

Item 11 - Clause 238

Item 12 - Clause 238

143.
Item 9 omits paragraph 237(2)(c) and substitutes a new paragraph
requiring FWA to be satisfied before making a majority support
determination that the group of employees to be covered by the
proposed enterprise agreement was fairly chosen. Item 10
inserts new subclause 237(3A), which provides that if the proposed
agreement will not cover all of the employer’s employees, FWA
must take into account whether the group of employees is
geographically, operationally or organisationally distinct in
deciding whether the group of employees was fairly chosen.

144.
Items 11 and 12 make similar changes in relation to the matters of
which FWA is required to be satisfied before it makes a scope order
under clause 238. Item 11 also makes clear that the agreement being
referred to is the one that is the subject of the scope order, not
the one that triggered the application.

Other technical amendments

Item 1 - Clause 174

145.
This item inserts a new subclause in clause 174 to enable the
regulations to prescribe other matters relating to the content or
form of the notice of employee representational rights or the
manner in which employers may give the notice to employees.

Item 8 - Clause 229

146.
This item is a technical amendment that omits subclause 229(5) and
substitutes a new subclause that makes clear that FWA may consider
an application for a bargaining order even if the application does
not comply with paragraph 229(4)(b) or (c) if FWA is satisfied it
is appropriate in the circumstances to do so.

TRANSFER OF
BUSINESS

Item 1 - Clause 318

Item 2 - Clause 319

147. These
items amend paragraphs 318(3)(d) and 319(3)(d) of the Bill by
inserting additional matters that FWA must take into account when
deciding whether to make an order under subclauses 318(1) and
319(1). These items are intended to ensure that, in deciding
what instruments should cover the new employer and its employees,
FWA has regard to the new employer’s situation as well as the
existing factors in subclauses 318(3) and 319(3) (such as whether
employees would be disadvantaged). This includes the
efficient operation of the new employer’s enterprise and the
degree of fit between any transferable instrument and arrangements
that already exist in the new employer’s enterprise.

Illustrative example

Albury-Wodonga Banking Corporation (ABC) employs a
number of employees to maintain its IT systems. The employees
are covered by the ABC Award (a named employer award). That
is, the award covers banking work generally as well as ABC’s
IT staff.

ABC decides to outsource the maintenance of its IT
systems to Sydney Tech Systems (STS), a general IT services
company. STS agrees to offer employment to certain employees
of ABC who performed the maintenance work in-house. STS is covered
by an enterprise agreement that relates specifically to IT
services.

Clause 313 has the effect that ABC’s award
will cover STS and the transferring employees. However, STS
makes an application to FWA under clause 318 for an order that
ABC’s award not cover it or the transferring employees and
that STS’s enterprise agreement cover the transferring
employees instead. In deciding whether to make the order, FWA
is required to consider, among other things, the degree of
‘business synergy’ between ABC’s award and
STS’s existing instruments. FWA is also required to
consider whether the employees would be disadvantaged.
Although the terms and conditions in STS’s enterprise
agreement are different from those in the ABC Award, overall, the
employees would not be disadvantaged. Therefore, FWA decides
to make the order sought by STS for reasons including that
ABC’s award, which is focused on applying to banking work, is
less suitable to the work performed by the transferring employees
than STS’s enterprise agreement.

Item 3 - Clause 320

148. This item
amends subclause 320(2) to insert an additional ground on which FWA
may vary a transferable instrument. This item permits FWA to
vary a transferable instrument to enable it to operate in a way
that is better aligned to the working arrangements of the new
employer’s enterprise.

Illustrative example

Wood Weather Systems Pty Ltd (Wood) acquires the
business of Fahrenheit Co and offers employment to employees of
Fahrenheit Co. These employees were covered by the Fahrenheit Co
Enterprise Agreement (Agreement). The Agreement provides that
employees’ ordinary hours are 37½ hours each week.
Wood’s existing employees all work ordinary hours of 38 hours
each week. Wood applies to FWA to vary the term of the Agreement
dealing with ordinary hours so that the transferring employees can
work ordinary hours of 38 hours a week, to enable them to be better
integrated into Wood’s business. Wood also proposes that the
pay rates under the Agreement be adjusted to reflect the slightly
longer working week. FWA agrees to the proposed variations because
it better aligns the terms of the Agreement to the working
arrangements in place at Wood.

Item 4 - Clause 320

149. This item
amends clause 320 to include additional matters that FWA must take
into account when deciding whether to make a variation under
subclause 320(1). This is intended to ensure that FWA has
regard to the new employer’s financial position, the
efficient operation of the new employer’s enterprise and the
degree of fit between any transferable instrument and arrangements
that already exist in the new employer’s enterprise.

INDUSTRIAL ACTION

150.
Part 3-3 of the Bill deals with industrial action, including
processes for protected action ballots, and restrictions on
payments to employees relating to periods of industrial action
(strike pay). The key items in this group of amendments:

· make clear that industrial
action is not protected if it occurs whilst a serious breach
declaration is in operation;

· amend clause 426 of the Bill to
modify the threshold that FWA is to apply when considering whether
to suspend protected industrial action because the action is
threatening to cause significant harm to a third party;
and

· amend the strike pay provisions
to clarify the operation of the rules about deduction of pay in the
context of overtime bans and partial work bans.

The remaining amendments are technical in nature.

Meaning of employee claim/employer response action

Item 1 - Clause 12

Item 2 - Clause 12

151.
These items amend the meaning of employee claim action and employee
response action by including a cross-reference to
paragraphs 471(4A)(c) and (d) respectively. They are
consequential to the amendment proposed by item 19.

Item 3 - Clause 19

152.
This item inserts a legislative note at the end of clause 19 to
make clear to the reader that in this clause (which defines the
meaning of industrial action) employer and employee are to have
their national system meanings.

Protected industrial action

Item 4 - Subclause 409(1)

Item 5 - Subclause 409(1)

153.
These items are technical amendments to subclause 409(1) to clarify
that the industrial action organised or engaged in for the purpose
of supporting or advancing claims must only be about, or reasonably
believed to only be about, permitted matters.

Item 7 - Subclause 413(7)

Item 8 - Subclause 413(7)

154.
Items 7 and 8 are technical amendments to subclause 413(7) to
clarify that if the order or declaration suspends or terminates any
protected industrial action in relation to the agreement then no
other action can be engaged in during that time.

Item 6 - Subclause 413(7)

Item 9 - Subclause 413(7)

155.
Item 9 inserts a new paragraph 413(7)(c) into the Bill to ensure
that industrial action will not be protected if a serious breach
declaration made by FWA under clause 235 is in operation in
relation to the proposed enterprise agreement. Item 6 is a
technical amendment consequential to item 9.

Item 10 - Subclause 417(2)

Item 11 - Subclause 417(2)

156.
These items are technical amendments to subclause 417(2) to provide
that the subclause identifies persons ‘covered’ by the
agreement or determination.

Item 12 - Clause 426

Item 13 - Clause 426

Item 14 - Clause 426

157.
These items amend clause 426 to modify the threshold that is
necessary for threatened harm before FWA must make an order
suspending the protected industrial action. More
particularly, these items amend subclause 426(4) so that the
matters FWA may take into account when considering if the action is
threatening to cause significant harm include the extent to which
the action threatens to:

· damage the ongoing viability of
an enterprise carried on by a person;

· disrupt ‘for an extended
period’ the supply of goods or services to an
enterprise;

· ‘significantly’
reduce the person’s capacity to fulfil a contractual obligation; or

· cause other
‘serious’ economic loss to a person.

Item 15 - Clause 426

158.
This item inserts new subclause 426(4A), which requires that where
industrial action is threatening to cause significant harm to a
third party, that harm must be imminent.

Protection action ballot orders

Item 16 - Subclause 438(1)

159.
This item is a technical amendment to subclause 438(1) to provide
that it operates if one or more enterprise agreements
‘cover’ the employees.

Non-payment for overtime bans

Item 17 - Subclause 470(4)

160.
This item is a technical amendment that restructures
subclause 470(4) of the FW Bill (that deals with protected
overtime bans) to make its operation clearer. That subclause
provides that a deduction may only be made under the provisions in
relation to ‘a period of overtime to which the ban
applies’ (i.e., a period of overtime an employee is required
or requested to work, but refuses to work because of the imposition
of protected overtime bans). This means that no deduction may
be made from ordinary time earnings.

161.
Additionally the prohibition on the payment of strike pay does not
apply if the employee refuses to work overtime under an applicable
modern award, enterprise agreement or contract of employment.
For example, a term of an agreement might allow an employee to
decline a request to work overtime on the ground of family
responsibilities. If an employee declines to work overtime
and complies with that term, the prohibition on the payment of
strike pay does not apply because the employee has not engaged in
industrial action.

Item 18 - Clause 471

162.
This item substitutes a new paragraph 471(4)(c) which deals
with non-payment for protected partial work bans.

163.
The provision currently provides that an employer may withhold
payments from an employee (who engages in protected partial work
bans) in relation to an industrial action period, providing that
the employer has given the employee a valid notice of non-payment
(subclause 471(4)).

164.
The amendment makes it clear that, in these circumstances, payments
may only be withheld for the industrial action period if the
employer gives the employee a written notice stating that, because
of the ban:

· the employee will not be
entitled to any payments; and

· the employer refuses to accept
the performance of any work by the employee until the employee is
prepared to perform all of his or her normal duties.

165.
It is intended that an employer’s refusal to accept the
employee’s work in these circumstances would not constitute
industrial action.

Item 19 - Clause 471

166.
This item inserts a new subclause 471(4A) which is
consequential to the amendments made by item 18.

167.
The amendment specifies an employee’s legal status during a
period of non-payment under subclause 471(4). For that
period, the failure or refusal of an employee to attend for work,
or perform any work (i.e., not just the banned duties) if he or she
does attend for work, would be either:

· employee claim
action—even if it does not satisfy ballot and notice
requirements under subclauses 409(2) and 413(3) respectively;
or

· employee response
action—even if it does not satisfy ballot requirements under
subclause 413(4),

depending
on the nature of the original protected partial work bans. In
effect, the employee’s refusal or failure would be taken to
be a continuation of the original protected industrial action.

Item 20 - Clause 474

168.
This item is a technical amendment that clarifies the application
of the strike pay rules for overtime bans that are not protected
industrial action (by inserting new subclause 474(2A)).

169.
In particular, the new subclause clarifies that the total duration
of the industrial action (i.e., for which payment must be withheld)
is, or includes, any period of overtime that an employee has been
required or requested to work, but has refused to work, pursuant to
an unprotected overtime ban. If payment must be withheld for
the minimum period of four hours on a day (i.e., under
paragraph 474(1)(b)), then that period would include any
period of overtime an employee has been required or requested to
work, but has refused to work, pursuant to an overtime ban that is
not protected. For example, if an employee refuses to work
two hours’ overtime on a day (when requested by their
employer) pursuant to an overtime ban that is not protected, then
the employer must withhold payments for that two-hour overtime
period, plus a further two hours (taking the deduction to the
minimum four hours’ pay).

Protected industrial action

Item 21 - Clause 539, item 14

170.
This item is a technical amendment to clause 539, item 14,
paragraph (c), second column to provide that it is the employee
organisation ‘covered’ by the enterprise agreement or
workplace determination concerned that has standing in respect to
clause 417. Item 21 is consequential on items 7 and 8.

RIGHT OF ENTRY: TCF
OUTWORKERS

171.
These amendments are intended to ensure that permit holders who are
entitled to represent workers in the textile, clothing and footwear
(TCF) industry can enter premises for investigation or discussion
purposes.

172.
In particular, these changes acknowledge the need to ensure the
effective operation of longstanding provisions in awards applying
in the TCF industry (which are maintained in the modern award
- see Schedule D to the Textile, Clothing, Footwear and
Associated Industries Award 2010 ).

Item 17 - New Subdivision AA of Division
2 of Part 3-4

173.
The Bill currently allows permit holders to enter workplaces to
investigate a suspected breach of the FW Bill or a fair work
instrument if the breach relates to a member who works on the
premises. In the TCF industry permit holders may not be able
to meet these requirements due to the low rate of union membership
amongst TCF workers and not knowing whether a TCF outworker
performs work on the premises.

174.
The nature of the TCF outworker industry means that investigating a
breach will invariably require entry to premises other than where
TCF workers perform work (e.g., where relevant documents may be
kept).

175.
Item 17 inserts a new Subdivision AA in Division 2 of Part 3-4 of
the Bill to address these issues.

176.
New clause 483A sets out particular rights of entry to premises for
contraventions that relate to TCF outworkers. There are two
types of entry set out in this clause.

177.
The first is set out in paragraph 483A(1)(a) and is to investigate
a suspected contravention of the Bill or a term of a fair work
instrument where the contravention relates to or affects a TCF
outworker who performs work on the premises.

178.
The second is set out in paragraph 483A(1)(b) and is to investigate
a suspected contravention of a designated outworker term that is in
an instrument that relates to TCF outworkers.

179.
The types of entry are dealt with separately as entry to
investigate a suspected contravention of a designated outworker
term does not require the permit holder to have a reasonable
suspicion that a contravention has occurred or is occurring or have
the burden of proving a suspicion is reasonable. These
requirements do apply to entry under paragraph 483A(1)(a) and are
set out in subclauses 483A(2) and (3).

180.
Designated outworker term will be defined in clause 12 - see
item 1 in PY414 (Outworkers).

181.
In both types of entry under this clause the permit holder’s
organisation must be entitled to represent the industrial interests
of TCF outworkers. However, entry under paragraph 483A(1)(b)
would not require the presence or identification of a particular
outworker. This recognises the fact that designated outworker
terms in the TCF award create a regulatory framework that applies to employers and other
entities that arrange for work to be carried out by employee and
non-employee outworkers. Some of these obligations are
imposed irrespective of whether a particular employer or entity
directly engages or employs outworkers.

182.
Subclause 483A(5) defines designated outworker terms entry as
meaning entry provided for in paragraph 483A(1)(b) to investigate a
suspected contravention of a designated outworker term. This
term is used in various other clauses to refer to entry under
paragraph 483A(1)(b).

183.
Clause 483B sets out the rights a permit holder can exercise once
on premises. These rights are the same as those that can be
exercised by permit holders entering premises to investigate
suspected contraventions under clause 482 (as proposed to be
amended).

184.
An occupier of premises or an affected employer who is required by
a permit holder to allow the inspection and copying of records or
documents must comply with that requirement (see subclause
483B(4)). This subclause is a civil remedy provision under
Part 4-1 (Civil remedies).

185.
Subclause 483B(3) sets out who is an affected employer in relation
to the types of entry onto premises authorised by clause 483A.
Generally, a person is an affected employer in relation to
TCF outworker entry if:

· she or he employs a TCF
outworker whose industrial interests the permit holder’s
organisation is entitled to represent;

· the TCF outworker performs work
on the premises; and

· the suspected contravention
relates to or affects the TCF outworker.

186.
However, for a designated outworker terms entry, a person is an
affected employer if she or he is covered by a TCF award.
This reflects the distinctive nature of investigating such terms,
particularly the fact that a person who has obligations under the
award and holds relevant documents may not be in any direct
employment or contractual relationship with any relevant TCF
outworkers.

187.
Clause 483C allows a permit holder to require an occupier or
affected employer to provide documents or records at a later time -
i.e., after the permit holder has visited the premises. This
provision generally replicates the rights and requirements
regarding later access to records or documents set out in existing
clause 483. However, the rights and requirements set out in
clause 483C also apply to occupiers of premises to address the fact
that, for TCF outworker entry, there may not always be an affected
employer who holds the relevant documents.

188.
Clause 483D authorises entry to premises where TCF outworkers do
not work but at which documents that are directly relevant to a
suspected contravention affecting TCF outworkers are kept.
This right of entry to ‘other’ premises is required
because TCF outworkers may work at premises other than an
employer’s place of business, where documents relevant to the
suspected contravention may be kept.

189.
In order to be able to enter other premises under clause 483D, a
permit holder must meet the requirements for entry onto premises
under paragraph 483A(1)(a). The permit holder must also
reasonably suspect that records or documents that are directly
relevant to the suspected contravention relating to a TCF outworker
are kept on the other premises, or are accessible from a computer
that is kept on those premises.

190.
While on the other premises, the permit holder can require the
occupier of the premises to give him or her access to the records
or documents (subclause 483D(2)), unless the documents or records
are protected by another law of the Commonwealth or a law of a
State or Territory (subclause 483D(3)).

191.
Subclause 483D(4) is a civil remedy provision which provides that
the occupier must comply with a requirement to provide
documents or records.

192.
Clause 483E allows a permit holder to require the occupier of those
other premises to provide documents or records that are directly
relevant to a suspected contravention at a later time after the
permit holder has visited the other premises. This provision
generally replicates the rights and requirements regarding later
access to records or documents set out in clause 483C.

193.
It is important to note that clauses 483D and 483E operate subject
to clause 493 which prevents a permit holder from entering premises
used mainly for residential purposes.

194.
The mandatory requirements applying to permit holders when
exercising or attempting to exercise rights in Subdivision C of
Division 2 apply to entry under new Subdivision AA.

Item 1 - clause 12

Item 4 - clause 12

Item 5 - clause 12

Item 6 - clause 12

Item 7 - clause 478

Item 8 - clause 478

Item 9 - clause 480

195.
These amendments are consequential to the general TCF outworker
right of entry amendments.

196.
Items 5 and 6 insert two new definitions in clause 12. The
definition of TCF award refers to an instrument prescribed by the
FW regulations. It is intended that the Textile, Clothing,
Footwear and Associated Industries Award 2010 will be
prescribed.

197.
The definition of TCF outworker refers to persons who perform work
that is within the scope of a TCF award. This ensures that
the TCF-specific entry right exists only with respect to employers
within the TCF industry.

Item 38 - Clause 518

198.
This amendment provides specific entry notice requirements for
entry to investigate suspected contraventions relating to TCF
outworkers. The different requirements are based on the
circumstances of the specific types of TCF outworker
entry.

199.
In particular, as designated outworker terms entry under clause
483A does not require the presence of a particular outworker at the
premises, the entry notice only needs to contain a declaration by
the permit holder that his or her organisation is entitled to
represent the industrial interests of TCF outworkers in general
(see paragraph 518(2)(cb)).

Item 19 - Clause 484

Item 20 - Clause 486

Item 21 - Clause 487

Item 22 - Clause 487

Item 23 - Clause 489

Item 24 - Clause 489

Item 25 - Clause 489

Item 26 - Clause 489

Item 27 - Clause 490

Item 28 - Clause 490

Item 30 - Clause 502

Item 35 - Clause 518

Item 36 - Clause 518

Item 37 - Clause 518

Item 39 - Clause 518

Item 40 - Clause 518

Item 41 - Clause 518

Item 42 - Clause 519

Item 43 - Clause 519

Item 44 - Clause 539

200.
These amendments are consequential to the general TCF industry
amendments to Part 3-4 of the FW Bill. They ensure
that the entry rights conferred on officials of organisations, and
the associated requirements and prohibitions, also apply to permit
holders entering premises in relation to workers in the TCF
industry.

RIGHT OF ENTRY:
PROTECTION OF EMPLOYEE INFORMATION

Item 10 - Clause 482

Item 11 - Clause 482

Item 14 - Clause 483

201.
Paragraph 482(1)(c) and subclause 483(1) of the Bill allow permit
holders to require occupiers or employers to produce records or
documents relevant to a suspected breach while the permit holder is
on the premises or at a later time. These amendments make it
clear that only documents that are directly relevant to the
suspected contravention can be inspected or copied. This
ensures that permit holders only collect information that is
closely aligned to, and directly achieves, the intended purpose of
the collection.

202.
The requirement that documents and records be directly relevant to
the suspected contravention is replicated in the proposed new
clauses 483B, 483C, 483D and 483E. These clauses deal with
entry to investigate suspected contraventions relating to TCF
outworkers (see item 17).

Item 12 - Clause 482

Item 16 - Clause 483

203.
These amendments to the legislative notes after subclauses 482(1)
and 483(5) clarify what protections apply to information or
documents collected under the right of entry provisions.

204.
Note 1 directs the reader to clause 504. Clause 504 prohibits
any person from disclosing information obtained by a permit holder
for a purpose not related to rectifying the suspected contravention
or in other limited circumstances. Note 2 highlights that the
use or disclosure of personal information collected by a permit
holder under these amended clauses is also covered by the
Privacy Act 1988 .

Item 13 - Clause 482

Item 15 - Clause 483

205.
These amendments insert new subclauses 482(1A) and 483(1A) to
provide that occupiers and employers are not required to provide
permit holders with access to documents or records that are
protected by another law of the Commonwealth or by a law of a State
or Territory.

206.
These amendments are intended to ensure that obligations under
Commonwealth, State or Territory laws prohibiting the disclosure of
sensitive information are not overridden by the right of entry
provision. An example of such a law is section 58 of the
Child Support (Registration and Collection) Act 1988 (the
Child Support Act), which provides that an employer must not
divulge information about the deduction of child support from an
employee’s wages. These new subclauses mean that an
employer will not have to disclose information in a record or
document to a permit holder if that disclosure would otherwise
amount to a breach of section 58 of the Child Support Act.

207.
Proposed new clauses 483B, 483C, 483D and 483E, dealing with entry
to investigate contraventions relating to TCF outworkers, also
adopt this approach.

Item 31 - Clause 504

208.
This item replaces current clause 504 of the Bill, which deals with
the use or disclosure of documents in contravention of National
Privacy Principle 2 (NPP2) in Schedule 3 to the Privacy Act
1988 . New clause 504 is broader than the existing
provision. It protects against the unauthorised use or
disclosure of not just employee records but other information,
including business plans or other sensitive information of
employers.

209.
The new provision prohibits permit holders from using or disclosing
any information or document collected in the course of
investigating a suspected contravention (including personal
information within the meaning of the Privacy Act 1988 )
unless the use or disclosure is for a purpose related to the
investigation or rectifying the suspected contravention. The
new provision also sets out a number of circumstances where the use
or disclosure of such information for a purpose other than
rectifying the contravention is not prohibited (paragraphs
504(a)-(e)). These exceptions are based on the exceptions
that are provided for in NPP2 in relation to the disclosure of
personal information under the Privacy Act 1988 .

210.
These exceptions include where the disclosure is:

· necessary to lessen or prevent
a serious threat to public health and safety;

· required or authorised by or
under law; and

· with the consent of the
individual whose information is being disclosed.

211.
Clause 504 continues to be a civil remedy provision under Part 4-1
(Civil remedies).

Item 32 - Clause 510

Item 33 - Clause 510

Item 45 - Clause 539

212.
These amendments are consequential to the amendments to clause
504.

Item 34 - Clause 510

213.
This amendment is consequential to the amendments to clause 504 and
to the general TCF industry amendments to Part 3-4 of the Bill
(Right of entry).

OTHER RIGHT OF ENTRY
AMENDMENTS

Item 18 -
Clause 484

214.
This item clarifies that when a permit holder enters premises under
clause 484, the entry must be for the purpose of holding
discussions with employees or TCF outworkers who:

· perform work on the
premises;

· are entitled to be represented
by the permit holder’s organisation; and

· wish to participate in those
discussions.

215.
While entry must be for the purpose of holding discussions with
this class of workers, it does not mean that if other workers
choose to attend or participate in discussion that the entry is
invalid or contrary to the Act.

216.
The amendment also makes clear that the proviso that employees must
wish to participate in discussions operates after entry -
i.e., it ensures that an employee cannot be required or otherwise
compelled to participate in the discussions. However, it does
not mean that a permit holder must demonstrate before entry that
there is a particular employee on the premises who wishes to talk
to the permit holder.

Item 29 - Clause 495

217.
Clause 495 currently requires a permit holder exercising a right of
entry under State or Territory OHS legislation to notify both the
occupier of the premises and any affected employer when seeking
access to employee records. An affected employer is defined
as a person whose employees work on the premises. This has
the unintentional consequence that on sites with multiple
employers, every employer has to be notified even if the permit
holder only wishes to view records held by one employer.

218.
Consistent with the intent of the provision, the amendment changes
the definition of affected employer to persons who employ employees
to whom the relevant records relate. This amendment ensures
that only employers of employees whose records a permit holder
wishes to inspect need to be notified.

Item 2 - Clause 12

Item 3 - Clause 12

219.
These amendments are consequential to the amendment in item 29.

GENERAL
PROTECTIONS

Item 1 - Clause 12

Item 3 - Clause 12

Item 6 - Clause 351

Item 7 - Clause 351

Item 8 - Clause 351

Item 9 - Clause 351

220. Paragraph
351(2)(a) of the Bill (together with paragraph 342(3)(a)),
currently provide that action is not discriminatory if it is
authorised by or under a Commonwealth, State or Territory
anti-discrimination law. This exception is intended to ensure
that where action is not unlawful under a relevant
anti-discrimination law (e.g., because of the application of a
relevant statutory exemption) then it is not adverse action under
subclause 351(1). The word ‘authorised’ may not
capture all action that is not unlawful under anti-discrimination
legislation, especially if the legislation does not specifically
authorise the conduct but has the effect that the conduct is not
unlawful. These amendments ensure the exception operates as
intended.

221. Item 8
also clarifies that the exception in paragraph 351(2)(a) only
relates to laws applying in the place where the action
occurred. This means that the exception cannot operate to
authorise action in one State (e.g., Queensland) because the action
is authorised under the provision of an anti-discrimination law in
another State (e.g., Victoria).

Item 5 - Clause 347

222. Under
paragraph 347(b)(vi) of the Bill, a person engages in industrial
activity if he or she pays a fee (however described) to an
industrial association.

223. However,
paragraph 347(b)(vi) does not expressly deal with payments made to
other persons ‘in lieu of an industrial association’
(e.g., where an industrial association is collecting or demanding
fees through another entity). Item 7 ensures such payments
are captured.

WORKPLACE
DETERMINATIONS

Description of employees

Item 4 - Clause 281A

224. This item
inserts clause 281A into the Bill to clarify how employees,
employers and employer organisations are to be described in
instruments referred to in Part 2-5 (Workplace Determinations). The
amendment clarifies that when a provision of Part 2-5 requires or
permits an instrument to specify the employees covered by a
workplace determination or other instrument, the employees may
either be specified by class or by name. This is a technical
amendment to ensure that the provisions do not require each
employee to be individually named.

225. The item
also makes clear that where a provision requires an employer or
employee organisation to be specified, the employer or employee
organisation must be specified by name.

REINSTATEMENT BY
ASSOCIATED ENTITIES

Item 2 - Clause 12

Item 10 - Clause 391

Item 11 - Clause 391

226. Item 10
inserts a new subclause (1A) into clause 391 to enable FWA to make
a reinstatement order applying to an associated entity of the
person’s previous employer if there has been a corporate
restructure in the period since the employee was unfairly
dismissed.

227. Item 11
ensures that FWA can make an order under paragraph 391(2)(b) to
maintain the person’s continuous service with the associated
entity if relevant.

228. Item 2
amends clause 12 to include a definition of reinstatement, defined
to include appointment by an associated entity where subclause
391(1A) applies.

STAND DOWN

Item 12 - Clause 524

Item 13 - Clause 524

229. This item
adds another legislative note following clause 524 of the
Bill. The note explains that an enterprise agreement or contract of
employment may make additional provision in relation to stand
downs, including requirements relating to consultation or notice
periods. This reinforces the notion that the stand down
provisions under the Bill are default provisions, and may be
replaced in certain circumstances by stand down provisions
under an enterprise agreement or contract of employment
(i.e., to the extent the provisions deal with each of the
circumstances provided for under subclause 524(1) of the
Bill).

230. This item
is a technical amendment as a consequence of the amendment made by
item 13.

MULTIPLE ACTIONS

Item 14 - Clause 734

Item 15 - Clause 734

Item 16 - Clause 734

231. Clause 734
of the Bill is an ‘anti-double dipping’ provision which
prevents a person from making a general protections court
application in relation to conduct that does not involve dismissal,
if the person has made an application or complaint in relation to
that conduct under another law.

232. Items 14
and 15 limit the scope of this provision so that it only applies to
applications or complaints made under an anti-discrimination law
and not applications for remedies under different sorts of
legislative frameworks (e.g., workers compensation).

233. Item 16
inserts an equivalent prohibition on a person making an application
or complaint under an anti-discrimination law in relation to
conduct where a general protections court application has already
been made.

FAIR WORK INFORMATION
STATEMENT

Item 1 - Clause 124

234.
This item provides that the FWO (rather than FWA) must prepare and
publish the Fair Work Information Statement. In addition to
the matters identified in the Bill, the Statement must include
information about:

· termination of
employment;

· individual flexibility
arrangements; and

· right of entry (including the
protection of personal information by privacy laws).

235.
Subclause (3) states that the Fair Work Information Statement is
not a legislative instrument. This provision is included to
assist readers, as the Statement is not a legislative instrument as
defined by section 5 of the Legislative Instruments Act
2003 .

236.
Subclause (4) allows regulations to be made dealing with other
matters relating to the content or form of the Statement, or the
manner in which employers may give the Statement to employees.

FUNCTIONS OF THE FAIR
WORK OMBUDSMAN

Item 2 - Clause 576

Item 3 - Clause 682

Item 4 - Clause 682

Item 5 - Clause 682

Item 6 - Clause 682

Item 7 - Clause 682

237.
The amendments to clause 682 (Functions of the Fair Work Ombudsman)
in items 4 and 5 would amend the functions of the FWO to
include:

239.
The amendments to clause 682 in items 3, 6 and 7 are consequential
amendments. The amendment made by item 7 requires the FWO to
consult with FWA in producing guidance material that relates to the
functions of FWA. The amendment to clause 576 (Functions of
FWA) in item 2 reflects the intention that the FWO is the primary
source of information, assistance and advice within the
institutional framework to be established by the Bill. It
ensures FWA’s education functions are focused on providing
assistance and advice that directly relate to its functions and
activities.

FAIR WORK OMBUDSMAN,
FAIR WORK AUSTRALIA

Definitions

Item 1 - Clause 12

240.
Clause 12 of the Bill contains a definition of magistrates
court. State and Territory legislation sets out the
requirements for the appointment of magistrates in each
jurisdiction. This item amends paragraph (b) of the
definition of magistrates court so that it simply means a court
constituted by an industrial magistrate.

242.
This item amends a note about the interaction between compliance
notices and applications for orders (see item 26).

Underpayments

Item 4 - Clause 544

Item 5 - Clause 544

Item 6 - Clause 545

243.
Clause 545 sets out the orders that can be made by particular
courts, including orders that require an employer to remedy an
underpayment. Item 6 amends clause 545 to provide that a
court must not make an underpayment order that relates to a period
that is more than six years before the proceedings commenced.
Item 5 adds a note to clause 544 to alert the reader that there is
a time limit on orders relating to underpayments.

Functions of FWA

Item 8 - Clause 576

Item 9 - Clause 576

244.
These items amend clause 576 to confer the following additional
functions on FWA:

· providing administrative
support to the Federal Court and the Federal Magistrates Court in
accordance with an agreement entered into by the General Manager
with the relevant Court - Item 8. The amendment in item
18 empowers the General Manager to enter into such
arrangements;

· providing mediation services on
referral from the Fair Work Divisions of the Federal Court and
Federal Magistrates Court - item 9. The Courts can
refer matters for mediation, either to a Registrar of the Federal
Court or, in some cases, to a private mediator. This
amendment enables (but does not require) the Courts to refer
matters to FWA for mediation.

Representation by lawyers

Item 10 - Clause 596

245.
This item amends clause 596 to enable lawyers employed by an
association of employers that is not registered under the Fair Work
(Registered Organisations) Act to represent their members before
FWA without the need to seek permission from FWA. This amendment
maintains the current position in the Workplace Relations Act
1996 (section 100) and Workplace Relations Regulations
2006 (regulation 3.4).

Delegation by President

Item 11 - Clause 625

Item 12 - Clause 625

246.
These items amends clause 625 to enable the President to delegate
the following additional functions or powers of FWA to the General
Manager, SES staff or acting SES staff, or a member of the staff
who is in a prescribed class:

· publishing the results of a
protected action ballot under proposed clause 457(2);
and

· any function or power as
prescribed by the regulations. This would include any
functions or powers conferred on FWA by other Commonwealth
legislation as well as functions or powers under the Fair Work
Bill.

Report by General Manager

Item 14 - Clause 653

Item 15 - Clause 653

Item 16 - Clause 653

Item 17 - Clause 653

Item 23 - Clause 658

247.
Items 14-17 amend clause 653 to also require the General Manager of
FWA to conduct research into, and report on:

· the extent to which individual
flexibility arrangements under modern awards and enterprise
agreements are being utilised; and

· the provisions of the NES
relating to requests for flexible working arrangements and
extensions of unpaid parental leave. This would include the
circumstances in which employees make such requests, the outcome of
such requests and the circumstances in which such requests are
refused.

248.
Item 23 makes a consequential amendment to clause 658 which ensures
that, in undertaking this additional research and report, the
General Manager is not subject to the direction of the
President.

Functions of General Manager

Item 7 - Clause 573

Item 13 - Heading to Division 7 of Part
5-1

Item 18 - New clause 653A

Item 20 - Clause 657

Item 21 - Clause 657

Item 22 - Clause 657

Item 24 - Clause 671

249.
These items confer additional powers and functions on the General
Manager of FWA.

250.
Item 18 inserts a new clause 653A, which empowers the General
Manager to enter into arrangements with the Federal Court or
Federal Magistrates Court under which FWA staff would provide
administrative support to the Fair Work Division of the relevant
Court. This could include accepting lodgement of documents
and performing other non-judicial activities on behalf of the
Court. The amendments in items 7 and 13 are consequential
upon the amendment made by item 18.

251.
Item 20 adds subclause 657(1A) to ensure the General Manager can
perform functions conferred on him or her by:

· a fair work instrument, for
example a modern award may require the General Manager to establish
and chair a Board of Reference;

· a law of the Commonwealth, for
example the Fair Work (Registered Organisations) Act or the Fair
Work (Transitional Provisions and Consequential Amendments)
Act.

252.
A legislative note alerts the reader to the General Manager’s
review function under clause 653 and power to enter into
arrangements with the courts for the provision of administrative
support under clause 653A. Items 21, 22 and 24 contain
technical amendments consequential to the changes made by item
20. In particular item 24 makes it clear that the General
Manager may also delegate his or her functions under proposed new
clause 653A and subclause 657(1A) to members of the staff of
FWA.

Disclosure of information by FWA

Item 19 - Clause 655

253.
Clause 655 currently permits FWA to disclose information including
where necessary or appropriate to do so in the course of performing
functions or exercising powers under the Fair Work Bill. It
is envisaged that functions may also be conferred on FWA by other
Commonwealth legislation, for example the Fair Work (Registered
Organisations) Act or the Fair Work (Transitional Provisions and
Consequential Amendments) Act, including the Workplace Relations
Act 1996 as preserved by the latter Act. The amendment in
item 19 makes it clear that the President may disclose information
in the course of FWA exercising or performing any of its powers or
functions, not just those under the Fair Work Bill.

Self-incrimination

Item 25 - Clause 713

254.
Item 25 provides that any record or document that is inspected or
copied by an inspector on premises or any information, document or
thing obtained as a direct or indirect consequence of an inspector
exercising that power is not admissible against an individual in
criminal proceedings, whether or not the person has provided the
documents to the inspector.

Compliance notice

Item 26 - Clause 716

255.
Item 26 prevents an inspector from instituting proceedings to
enforce a contravention if the inspector has already given the
person a notice in relation to the contravention and:

· the notice has not been
withdrawn, and the person has complied with the notice;
and/or

· the person has applied to the
Federal Court, Federal Magistrates Court or an eligible State or
Territory Court under clause 717 of the Bill to have the notice
reviewed.

256.
This item also provides that a person who complies with a notice is
not taken to have admitted to the contravention or to have been
found to have contravened the alleged contravention specified in
the notice.

Schedule 1 - Transitional provisions

Item 27 - New Schedule 1 to Bill

257.
Item 27 adds a new Schedule 1 to the Bill containing transitional
provisions that enable FWA and the Office of the FWO to commence
before the operative provisions of the Bill. The Schedule allows
for early appointments to FWA and FWO for administrative purposes
(not to perform substantive functions).

Clause 1 - Definitions

258.
Clause 1 provides that expressions used in Schedule 1 would
generally be defined by reference to the Workplace Relations Act
1996 , unless the expression is also defined in the Bill and it
is clear from the context that the latter definition should
apply.

Clause 2
- Appointments to FWA

259.
Clause 2 deals with the appointment of all primary AIRC members as
initial members of FWA. Until the AIRC is abolished, these
members will hold dual appointments to the AIRC and FWA. This
clause provides that:

· the President of the AIRC is
taken to be appointed as the President of FWA at the time that Part
5-1 of the Bill commences; and

· all other Presidential Members
and Commissioners of the AIRC (other than acting members of the
AIRC and members of a prescribed State industrial authority who
hold secondary appointments as members of the AIRC) are taken to be
appointed as Deputy Presidents and Commissioners of FWA,
respectively, by a subsequent proclamation.

260.
Subclause 2(3) enables the initial members of FWA to hold dual
appointments as members of the AIRC notwithstanding the provisions
of the Workplace Relations Act 1996 (including sections 66,
69 and 83) or the Bill (including subclause 628(2) and clauses 632
and 633).

Clause 3 - Terms and Conditions

261.
Clause 3 of the Schedule provides that the terms and conditions of
the initial members of FWA will continue to be governed by the
Workplace Relations Act 1996 rather than the Bill.
This ensures that:

· a single set of terms and
conditions (e.g., remuneration and leave) apply to dual appointees;
and

· the terms and conditions of
former AIRC members are preserved. Presidential Members of
the AIRC who become FWA Members retain the same rank, status and
precedence as a Judge, are entitled to be styled ‘The
Honourable’ and continue to be eligible for a judicial
pension. An FWA Member previously entitled to the designation
as a Judge of the Federal Court is entitled to retain that
designation.

Clause 4 - Seniority of FWA
Members

262.
As the initial members of FWA will all be taken to have been
appointed at the same time, clause 4 preserves the seniority those
members enjoyed as members of the AIRC under section 65 of the
Workplace Relations Act 1996 .

Clause 5 - Procedural Rules

263.
Clause 5 permits the President of FWA to make procedural rules
prior to the appointment of any other FWA Members notwithstanding
the consultation requirement in subclause 609(1) of the
Bill.

Clause 6
- Transfer of assets and liabilities

264.
Clause 6 requires:

· the Director of the AFPC
Secretariat and the Industrial Registrar to transfer their assets
and liabilities to FWA; and

· the Workplace Authority
Director and the Workplace Ombudsman to transfer their assets and
liabilities to the Office of the FWO.

265.
Assets and liabilities would be transferred on a specified default
date, expected to be the day on which the Workplace Relations
Act 1996 is repealed (the WR Act repeal day). However,
the Minister may, before that date, determine that some or all
assets and liabilities are to be transferred to a different body,
or on a different day, or according to regulations made for the
purposes of this item.

266.
For the avoidance of doubt, subclause 6(3) clarifies that a
Ministerial determination specifying a different cessation time for
a WR Act body or office is not a legislative instrument within the
meaning of section 5 of the Legislative Instruments Act
2003 . This provision is declaratory of the law and does
not amount to an exemption from the Legislative Instruments
Act 2003 .

267.
Subclause 6(4) clarifies that records or any other information in
the custody or control of a WR Act body will transfer to FWA or the
Office of the FWO in accordance with the asset transfer rules.

Clause 7 - Additional function and power
of the General Manager

268.
Clause 7 empowers the General Manager of FWA to enter into
arrangements with the Industrial Registrar, the Workplace Authority
Director and the Director of the AFPC Secretariat to provide
assistance to those office holders in the period between the WR Act
repeal day and the cessation time for the body or office.